Home Loan Savings Bank v. Jahweh, L.L.C.

[Cite as Home Loan Savings Bank v. Jahweh, L.L.C., 2023-Ohio-1166.]
COURT OF APPEALS
COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT
THE HOME LOAN SAVINGS BANK : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Andrew J. King, J.
-vs- :
:
JAHWEH LLC, ET AL. : Case No. 2022CA0033
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 18CI0418
JUDGMENT: Dismissed
DATE OF JUDGMENT: April 7, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JAMES R. SKELTON BRIAN W. BENBOW
309 Main Street 265 Sunrise Center Drive
Coshocton, OH 43812 Zanesville, OH 43701
Coshocton County, Case No. 2022CA0033 2
King, J.
{¶ 1} Defendant-Appellant Jahweh, LLC, et al appeals the November 17, 2022
judgment of the Coshocton County Court of Common Pleas which partially granted
Appellee The Home Loan Savings Bank's motion for summary judgment.
Facts and Procedural History
{¶ 2} This is the third time this matter has been before this court. On the first
occasion, in The Home Loan Savings Bank v. Jahweh LLC, et al, 5th Dist. Coshocton No.
2022CA0001, 2022-Ohio-1118 we outlined the facts and procedural history of this matter
to that point as follows:
{¶ 3} In October of 2018, appellee The Home Loan Savings Bank filed a
complaint seeking judgment on a guaranty/cognovit note. Home Loan filed a Statement
and Confession of Judgment with the complaint. On October 31, 2018 the trial court
issued a judgment on confession, awarding judgment in the amount of $977,471.46, plus
interest thereon at the rate of five percent per annum from October 3, 2018 against
defendants Jahweh, LLC, North Pointe Fitness Institute, LLC, and Phillip F. Arthur (herein
Jahweh). The clerk of courts issued notice of the judgment to all defendants via registered
mail, return receipt requested, but all three notices were returned unclaimed.
{¶ 4} On December 6, 2021, three years after issuance of the judgment, Jahweh
filed Defendants' Motion To Void The October 31, 2018 Judgment And To Dismiss The
Complaint. North Pointe, LLC and Phillip Arthur argued that they did not sign the note and
were therefore entitled to service of process. Because none was attempted, North Pointe,
LLC and Phillip Arthur argued the judgment against them should be vacated.
(Defendants' Motion To Void The October 31, 2018 Judgment And To Dismiss The
Coshocton County, Case No. 2022CA0033 3
Complaint, Dec. 6, 2021, p. 2) Jahweh also argued that the note signed on behalf of
Jahweh, LLC was not a cognovit note because the boxes next to the language that would
create a cognovit note were not checked. Jahweh argued the parties did not agree to a
cognovit provision and the judgment must not stand.
{¶ 5} Jahweh further argued that Home Loan failed to present the underlying
promissory note or a running account, and offered insufficient evidence to pierce the
corporate veil and hold Phillip Arthur individually liable.
{¶ 6} The trial court found "there is only one guarantor on the note, and that
guarantor is Jahweh, LLC." (Judgment Entry, January 5, 2022, p. 1). The trial court
therefore found against Jahweh, LLC stating:
[T]he terms of the guarantee [sic] are unambiguous and clear, and
need no interpretation, and this Court must give effect to all of the
contract provisions. Sutton Bank v. Progressive Polymers, L.L.C.,
161 Ohio St.3d 387 (2020). The cognovit language also complies
with the statutory requirements set forth in R.C. 2323.13. Defendant
Jahweh argues that the boxes next to the relevant language were
not checked. However the contract is completely silent as to what
effect, if any, marking the box would have on the terms of the
contract. In addition, Defendant Jahweh cites no caselaw in support
of the proposition that the box must be checked for the cognovit
provisions to be enforceable. It is also beyond comprehension that a
businessman guaranteeing a note for $977,471.46 would
Coshocton County, Case No. 2022CA0033 4
misunderstand the cognovit language or find that it was inconsistent
with the guarantee [sic] language on page two of the note.
{¶ 7} Jahweh's subsequent appeal argued the trial court's finding that the relevant
document was a cognovit note was error, and because the document was not a cognovit
note, the trial court lacked jurisdiction and its judgment was void.
{¶ 8} This court issued its opinion on March 31, 2022. We interpreted Jahweh's
motion in the trial court as a Civ.R. 60(B) motion for relief from judgment. We further found
the trial court erred as a matter of law in finding that the parties entered into a contract
containing a cognovit provision. Specifically, this court held:
We hold that Jahweh has filed a timely motion for relief from judgment and that its
assertion that the guaranty was not converted into a cognovit note supplies a
meritorious defense and that, therefor, the trial court abused its discretion by failing
to grant relief from judgment.
{¶ 9} The Home Loan Savings Bank v. Jahweh LLC, et al, 5th Dist. Coshocton
No. 2022CA0001, 2022-Ohio-1118 ¶ 32. We remanded the matter for proceedings
consistent with our opinion.
History Following Remand
{¶ 10} Herein, we focus on the pleadings related to the judgment entry appealed
from, specifically the November 17, 2022 judgment entry granting Home Loan's motion
for summary judgment as to counts 5 and 6 of Home Loan's amended complaint.
Coshocton County, Case No. 2022CA0033 5
{¶ 11} On April 7, 2022, the trial court issued a judgment entry vacating its
judgment against all named defendants pursuant to this court's March 31, 2022 decision.
{¶ 12} Five days prior, on April 2, 2022, Home Loan filed a first amended complaint
seeking judgment on the promissory note and guaranty as well as additional claims.
Home Loan filed its complaint against Jahweh LLC, A.R Fountaine LLC, and North Pointe
Fitness Institute, LLC, companies owned in whole or in part by Phillip Arthur, as well as
Phillip Arthur individually. The complaint alleged in part that Jahweh had failed to make
any payment on the note since May 2021.
{¶ 13} Attached to its amended complaint, Home Loan included the promissory
note, the guaranty, and the payment history of the loan. The guaranty indicated a loan of
$966,400 was made to North Pointe Fitness Institute, LLC and was signed by guarantor
Phillip F. Arthur, Member of Jahweh, LLC. The promissory note was signed by Phillip F.
Arthur on behalf of North Pointe Fitness Institute, LLC and "Phillip F. Arthur, Member."
The payment history indicated Jahweh had made interest-only payments for most of the
life of the loan, but then on April 23, 2021, made a principal payment of $501,306.31.
Home Loan alleged no payment had been made thereafter.
{¶ 14} On April 7, 2022, Jahweh was served with the amended complaint.
{¶ 15} Relevant to this appeal are counts 5 and 6 of Home Loan's amended
complaint which allege appellants Phillip F. Arthur and North Pointe Fitness Institute, LLC
are in default on their promissory note and that appellant Jahweh LLC is in default of its
guaranty because no payments have been made on the loan since May of 2021. The
counts allege the named parties still owe $433,177.22 on the note plus interest, fees, and
Coshocton County, Case No. 2022CA0033 6
costs, and that Home Loan has elected to enforce the guaranty for the entire balance
due.
{¶ 16} Relevant to this appeal, count 5 contains paragraphs 43 through 47, and
count 6 contains paragraphs 48 through 50.
{¶ 17} On April 5, 2022, Home Loan filed a Notice of Lis Pendens. It appears Home
Loan alleged its loan was leveraged by real estate owned by either Arthur or one of his
LLCs.
{¶ 18} On April 26, 2022, Jahweh filed a motion to strike the amended complaint,
and on May 12, 2022, the trial court denied the motion. Jahweh filed an appeal on May
18, 2022. On June 29, 2022, the appeal was dismissed for want of a final appealable
order. The Home Loan Savings Bank v. Jahweh LLC, et al, 5th Dist. Coshocton No.
2022CA0016.
{¶ 19} On July 5, 2022, Jahweh filed an answer and counter claim to Home Loan's
amended complaint. In its answer, Jahweh sequentially listed each paragraph of Home
Loan's complaint and denied the allegations contained in each. In what appears to be a
typographical error, the answer to paragraph 43 of the complaint on page 3 of the answer
and counter claim states "Defendants deny the allegations contained in paragraph 33 of
Plaintiff's Complaint." Paragraph 43 of Home Loan's first amended complaint alleged
Jahweh executed and delivered the promissory note to Home Loan. However, paragraph
51 of Jahweh's answer and counter claim states "Defendants deny any and all allegations
not specifically admitted herein."
{¶ 20} On July 13, 2022, Home Loan filed three documents; an answer to Jahweh's
counter claims, a motion for judgment on the pleadings as to Jahweh's counter claims,
Coshocton County, Case No. 2022CA0033 7
and a motion for summary judgment. Home Loan's motion for summary judgment argued
in part that Jahweh failed to deny paragraph 43 of the amended complaint. At no point
did Jahweh amend its answer to paragraph 43.
{¶ 21} On July 26, 2022, Jahweh filed a motion to hold Home Loan's motion for
summary judgment and motion for judgment on the pleadings in abeyance pursuant to
Civ.R. 56(F). On August 17, 2022, the trial court granted the motion to allow Jahweh to
obtain discovery.
{¶ 22} On July 27, 2022, Jahweh filed a memorandum contra to Home Loan's
motion for judgment on the pleadings. At page 15 of the memorandum Jahweh stated:
At issue is the reply to Par. 43 of Plaintiff's Complaint which
Defendants answered as follows: "Defendants deny the allegations
contained in Paragraph 33 of Plaintiff's Complaint."
A read of the context of all the answers before and after this answer
shows it to be a simple typographical error. The intent to deny this
paragraph is apparent when reviewed in context.
{¶ 23} On July 28, 2022, Home Loan filed an amended affidavit by Thomas Conidi,
Executive Vice President and Director of Loan Administration of The Home Loan Savings
Bank. The Conidi affidavit set forth that Phillip Arthur and North Pointe Fitness Institute,
LLC are delinquent on their loan payments and Jahweh, LLC is delinquent on its guaranty.
The amended affidavit contained a correction to the actual remaining balance on the loan.
Coshocton County, Case No. 2022CA0033 8
{¶ 24} On November 17, 2022, the trial court granted Home Loan's motion for
summary judgment as to counts 5 and 6 of its amended complaint and granted judgment
to Home Loan in the amount of $433,177.22 plus interest. It denied the motion for
summary judgment as to all other counts. The trial court noted the obvious and
correctable error in Jahweh's answer to paragraph 43. It stated "[T]he Court was not
previously inclined to treat the answer as a "gotcha" moment, and instead allow
Defendants to file an amended answer. However, four months have elapsed since the
answer was filed, and the issue of the failure to deny was raised by the Plaintiff on
September 21, 2022 * * *. Judgment Entry filed November 17, 2022 at page 2. The trial
court addressed none of Jahweh's counterclaims.
{¶ 25} As to Jahweh's motion contra to Home Loan's motion for summary
judgment, the trial court further found that while Home Loan's filing of an amended
complaint in this matter is "procedurally awkward * * * Ohio law allows for successive
foreclosure actions." Id. at 3.
{¶ 26} In its entry, the trial court certified there was no just cause for delay.
{¶ 27} Jahweh filed an appeal and the matter is now before this court for
consideration. Jahweh raises three assignments of error as follow:
I
{¶ 28} "THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING
APPELLEES’ MOTION FOR SUMMARY JUDGMENT AND BY NOT GRANTING
APPELLANT’S MOTION FOR SUMMARY JUDGMENT. APPELLEES’ CLAIMS ARE
BARRED BY APPLICATION OF THE LAW OF THE CASE DOCTRINE AND BY RES
JUDICATA."
Coshocton County, Case No. 2022CA0033 9
II
{¶ 29} "THE TRIAL COURT ERRED AS A MATTER OF LAW IN IMPERMISSIBLY
DECIDING THIS CASE BASED UPON A FLAWED PERCEPTION OF A PLEADING
ERROR IN VIOLATION OF THE SUPREME COURT’S HOLDING IN STATE EX REL.
HUNTINGTON INS. AGENCY, INS. AGENCY, INC. V. DURYEE (1995), 73 OHIO ST.
3D 530."
III
{¶ 30} "THE TRIAL COURT LACKED PERSONAL JURISDICTION OVER
APPELLANT IN THAT APPELLEE NEVER SERVED APPELLANT. THERE IS NO
EVIDENCE IN THE RECORD TO SUPPORT THE TRIAL COURT’S FINDING THAT
APPELLANT EXPRESSLY WAIVED SERVICE THE TRIAL COURT THUS LACKED
SUBJECT MATTER JURISDICTION OVER APPELLEE’S COMPLAINT. THE TRIAL
COURT ACCORDINGLY COMMITTED PREJUDICIAL ERROR BY DENYING
APPELLANT’S MOTION TO VACATE THE OCTOBER 31, 2018 JUDGMENT ENTRY,
AS THAT JUDGMENT ENTRY WAS VOID FOR LACK OF PERSONAL JURISDICTION
OVER APPELLANT.
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN NOT DISMISSING
APPELLEE’S COMPLAINT IN THAT APPELLEE NEVER COMMENCED ITS LAWSUIT
BY SERVING ANY PARTY WITHIN ONE YEAR OF FILING ITS COMPLAINT. THE
TRIAL COURT LACKED SUBJECT MATTER JURISDICTION OVER APPELLEE’S
Coshocton County, Case No. 2022CA0033 10
COMPLAINT, AS THE CASE WAS NOT TIMELY COMMENCED UNDER CIV.R. 3(A).
THE TRIAL COURT’S RULING WAS THUS VOID AB INITIO."
I, II, III
{¶ 31} Before turning the arguments, we must first determine whether the
judgment entry appealed from is a final appealable order. We conclude there is no final
appealable order here. The requirements of both R.C. 2505.02 and Civ. R. 54(B) must be
met in cases involving multiple parties and multiple claims in order for the judgment at
issue to truly be a final appealable order. Cherry Lane Dev., L.L.C. v. Walnut Twp., 5th
Dist. Fairfield No. 10-CA-28, 2011-Ohio-425, ¶ 18. See also State ex rel. Scruggs v.
Sadler, 97 Ohio St.3d 78, 2002-Ohio-5315, 776 N.E.2d 101, ¶ 5.
{¶ 32} The broad purpose of Civ. R. 54(B) is to provide an exception to the state’s
long-standing policy against piecemeal adjudication and interlocutory appeals. Noble v.
Colwell, 44 Ohio St. 3d 92, 96, 540 N.E.2d 1381, 1385 (1989). Upon proper certification
under this rule, a trial court’s final judgment will become immediately appealable, while
matters involving other parties or claims remain pending before the trial court. Civ. R.
54(B). The rule itself requires that the certified matter be a final judgment, which is
consistent with requirements of Section 3(B)(2), Article 4 of the Ohio Constitution.
{¶ 33} Here, the trial court rendered summary judgment against Defendants
Jahweh, LLC, Northpointe Fitness, LLC, and Phillip Arthur in favor of Plaintiff Home Loan
Savings Bank on only counts five and six of Home Loan’s amended complaint. These
claims arose from the Defendants failure to pay a debt either as obligee or guarantor to
the underlying note. The remaining two tort claims, fraudulent conveyance, and unjust
enrichment claim appear to arise from Arthur's purported transfer of property allegedly
Coshocton County, Case No. 2022CA0033 11
serving as collateral for the note. The trial court denied the motion for summary judgment
on those claims and ordered the three defendants to pay $433,177.22 with interest to
Home Loan.
{¶ 34} The trial court did not resolve any of the Defendant's counterclaims. In the
trial court’s 54(B) certification, it included the following statement "The Court finds that the
remaining claims should not be adjudicated without providing the opportunity for review
of this court’s decision granting summary judgment." But this court has previously held
that unresolved counterclaims or cross claims can prevent a judgment from becoming a
final appealable order, even when the entry includes the Civ. R. 54(B) certification. Alt v.
Bauer, 5th Dist. Richland No. 17CA97, 2018-Ohio-4264, ¶ 31. Thus, the court must
evaluate those pending counterclaims to determine if they "touch upon the very same
facts, legal issues and circumstances of the original claim." Id., ¶ 31. We turn to those
counterclaims now.
{¶ 35} Defendant's counterclaims include 10 counts. At least four of those counts
are relevant here. Count Two is a breach a contract; Count Three is an unjust enrichment
claim; Claim Four is a quantum meruit claim; and Count Ten is a declaratory judgment
claim. All four of these counts appear to arise out of the same factual and legal
circumstances -- i.e. the note or guaranty executed by the Defendants -- as the two counts
underlying the trial court’s partial summary judgment. The trial court’s express decision
not rule on these related claims means its partial summary judgment does not prevent
judgment as required by R.C. 2505.02(B)(1).
{¶ 36} Likewise, the partial summary judgment before us fails to determine the
action under R.C. 2505.02(B)(1). The judgment here fails to fully resolve the underlying
Coshocton County, Case No. 2022CA0033 12
dispute surrounding the note, which is necessary. Reg'l Imaging Consultants Corp. v.
Computer Billing Servs., Inc., 7th Dist. Mahoning No. 00 CA 79, 2001-Ohio-3457, *6.
{¶ 37} Accordingly, there is no final appealable order and this court is without
jurisdiction to proceed. We therefore dismiss the appeal.
By King, J.
Gwin, P.J. and
Delaney, J. concur.
AJK/rw